For the respondent-appellant-cross-respondent there were
briefs by Jimmie G. Davison.

For the complainant-respondent-cross-appellant there were
briefs by William J. Weigel and the Office of Lawyer Regulation, Madison.

2010
WI 1

notice

This opinion is subject to
further editing and modification.The
final version will appear in the bound volume of the official reports.

No.1992AP2445-D

STATE OF WISCONSIN:

IN SUPREME COURT

In the Matter of Disciplinary Proceedings Against Jimmie
G. Davison, Attorney at Law:

Board of Attorneys Professional Responsibility, n/k/a
Office of Lawyer Regulation,

Complainant-Respondent-Cross-

Appellant,

v.

Jimmie G. Davison,

Respondent-Appellant-Cross-

Respondent.

FILED

JAN 7, 2010

David R. Schanker

Clerk of Supreme Court

ATTORNEY reinstatement proceeding.Reinstatement
denied.

¶1PER CURIAM. Jimmie G. Davison has appealed a
referee's report recommending the denial of Attorney Davison's petition for
reinstatement of his license to practice law in Wisconsin.We agree with the referee that Attorney Davison has failed to
demonstrate by clear, satisfactory, and convincing evidence that his conduct
since the revocation has been exemplary and above reproach.The Office of Lawyer Regulation (OLR) has
filed a cross-appeal, asserting that the referee's stated reasons for
recommending against Attorney Davison's reinstatement are not broad
enough.We agree with the OLR and also
conclude that Attorney Davison has failed to demonstrate by clear,
satisfactory, and convincing evidence that he has the moral character to
practice law in Wisconsin and has also failed to prove that his resumption of
the practice of law will not be detrimental to the administration of justice or
subversive of the public interest.Consequently, we deny Attorney Davison's petition for reinstatement and
direct him to pay the costs of the reinstatement proceeding, which are
$8,944.03 as of October 27, 2009.

¶2Attorney Davison was admitted to practice law in Wisconsin
in 1976 and practiced in Milwaukee.In 1989 he was privately reprimanded for
making a misrepresentation to a client.

¶3In May of 1992 Attorney Davison was adjudged guilty of
first-degree sexual assault of a child, a class B felony.Attorney Davison, who was 55 years old, had
sexual intercourse with his 11-year-old stepdaughter.Attorney Davison's then-attorney wrote to the
Board of Attorneys Professional Responsibility (BAPR), predecessor to the OLR,
saying that the issuance of the criminal complaint was negotiated and the
number of counts was limited in response to Attorney Davison's assurance that
he would plead guilty to a single charge.Attorney Davison pled no contest to the charge, was sentenced to 12
years in prison, and was ordered to pay restitution for the victim.

¶5In 1997 Attorney Davison was an inmate at the KenoshaCorrectionalCenter and was
assigned to a work release program at a farm.He arranged for his wife to meet him for lunch at his work site on
November 11, 1997.When Mrs. Davison
arrived, Attorney Davison got into her car and instructed her to drive to a
remote area and park inside an isolated shed-type building.Once there, he pushed his food aside and
began making sexual advances, which Mrs. Davison rejected.

¶6According to the criminal complaint that was subsequently filed,
Attorney Davison assaulted his wife such that for a period of time she feared
for her life.His wife said Attorney
Davison made threats of rape, threatened to kill her if she filed for divorce,
and choked and hit her in such a manner that she was scratched, bleeding, and
had black and blue marks on her face and throat.

¶7Attorney Davison subsequently pled guilty to one count of
aggravated battery, one count of special circumstances battery (battery by a
prisoner), and one count of threats to injure, all as a repeater.Two additional criminal charges were
dismissed but read in for sentencing purposes:kidnapping as a repeater and false imprisonment as a repeater.Attorney Davison was sentenced to 16 years in
prison, consecutive to the prison time he was already serving.[1]

¶8Attorney Davison filed a petition for reinstatement of his license
to practice law in Wisconsin
in October 2007.The OLR filed a
response opposing Attorney Davison's petition for reinstatement.The OLR pointed out that Attorney Davison had
been convicted of criminal behavior prior to his 1992 first-degree sexual
assault conviction.The OLR noted
Attorney Davison was convicted of burglary in Georgia at age 18, and in 1958,
when he was 21 years old, he was charged with raping a 13-year-old girl.The OLR noted Attorney Davison was convicted
of sexual assault in 1959 and served three and one-half years of a 30-year
sentence.In 1967 Wisconsin Governor Knowles
commuted Attorney Davison's sentence to eight years, including parole time
already served.In 1972, after losing a Milwaukee common council
appointment due to his felony conviction, Attorney Davison applied for and
received a full pardon from Governor Lucey.The OLR said it did not believe Attorney Davison had met his burden of
showing that his post-revocation conduct has been exemplary and above
reproach.The OLR also said it was
unconvinced that Attorney Davison had met his burden of showing a proper
understanding of and attitude toward the standards that are imposed upon the
members of the bar and that he will act in conformity with those standards.

¶9Gary Olstad was appointed referee.A hearing was held on June 9, 2008.OLR's counsel cross-examined Attorney Davison at length regarding the
incident with his wife that occurred in November of 1997 which led to the three
additional felony convictions.Attorney
Davison vigorously denied virtually all of the allegations contained in the
criminal complaint, continually saying, "Did not happen." He said he pled guilty to the three felonies
because he was depressed, did not want the matter to continue, and because his
attorney had worked out a deal.

¶10A number of people submitted letters in support of Attorney
Davison's petition for reinstatement.The Board of Bar Examiners recommended Attorney Davison's reinstatement
subject to his compliance with current continuing legal education requirements.

¶11The referee issued his report on January 21, 2009, and said that Attorney
Davison testified about the efforts he has made, since his incarceration, to
identify and come to grips about the deep-seated psychological turmoil that
allowed him to rape his 11-year-old stepdaughter.The referee said were it not for the November
1997 incident involving his wife, the referee would not hesitate to recommend
reinstating Attorney Davison's license.The referee noted that at the hearing Attorney Davison testified he put
his hands on his wife's neck and face to make her look at him when he spoke to
her but said when she complained he was hurting her, he released her.He testified she got out of the car and
walked away and he followed, grabbing her arm.The referee noted that while Attorney Davison claimed the case was still
under appeal, on cross-examination he revealed the appeal was not based on a
claim of innocence, but rather on his continuing assertion that it was
inappropriate to charge him with two separate counts of battery arising out of
a single incident.

¶12The referee concluded that Attorney Davison failed to show by
clear, satisfactory, and convincing evidence that his conduct since the
revocation has been exemplary and above reproach.The referee said:

Even by the most generous definition, grabbing one's
spouse by the neck in the heat of an argument cannot be viewed as conduct that
is exemplary and above reproach.By his
own testimony Mr. Davison has been unable to show compliance with SCR
22.29(4)(e) which is a condition precedent to a recommendation that his license
be reinstated.

¶13The referee recommended that Attorney Davison not be assessed the
costs of the proceeding "based solely on compassion."The referee noted that in his testimony
Attorney Davison stated he is 72 years old, blind, and has few resources.The referee said if the recommendation to
deny reinstatement of his license were adopted, "the added burden of
paying for the proceedings, under the circumstances, would seem unjust."

¶14Attorney Davison has appealed, arguing that he has in fact
demonstrated by clear, satisfactory, and convincing evidence that he has the
moral character to resume the practice of law in Wisconsin.He continues to assert that he was "overcharged in a strictly legal
sense" following the 1997 incident with his wife.However, he also says he does not minimize
his behavior since he recognizes the incident was frightening and painful to
his wife.

¶15The OLR argues that the referee appropriately concluded that
Attorney Davison has failed to show by clear, satisfactory, and convincing
evidence that his conduct since the revocation has been exemplary and above
reproach.In its cross-appeal, the OLR
further argues that Attorney Davison has failed to prove he has the moral
character to practice law in Wisconsin
and he has also failed to prove that his resumption of the practice of law will
not be detrimental to the administration of justice or subversive of the public
interest.The OLR says:

[T]his Court can and should look beyond the current,
affable Jimmie Davison, who survived a tortuous childhood, deals admirably with
his physical disability, and participated in self-revelatory therapy.This Court needs to weigh heavily the nature
of Davison's past conduct, his self-serving lack of candor, and his history of
betraying the trust placed in him by those who in the past provided him
rehabilitative opportunities.

¶16The OLR argues that Attorney Davison's moral character is shown in
his extensive criminal history.It says
it is difficult to imagine an act more immoral than a 55-year-old experienced
attorney who has defended hundreds of sexual assault cases forcing himself on
the 11-year-old stepdaughter he has raised.OLR says Attorney Davison also has a history of dishonesty.It notes that in his first application for
executive clemency, Attorney Davison overtly admitted perjuring himself,
saying, "at my trial I lied about many things."It notes as an attorney, Attorney Davison was
privately reprimanded in 1989 for making a misrepresentation to a client, but
during the reinstatement hearing he disavowed the basis for the reprimand.The OLR says it is at least disconcerting
that Attorney Davison now disagrees with owning his past conduct.It says, "He has a story for everything,
frequently involving an assertion that older records of his conduct are
inaccurate.This tendency, perspective
or whatever one calls it is underscored in [Attorney] Davison's denial of most
of the unfavorable facts underlying the 1999 felony convictions."

¶17The OLR asserts that Attorney Davison's candor during the
reinstatement proceeding was suspect, and although the referee did not make a
specific credibility determination one way or the other, there appears to
perhaps be "a veil of incredulity" underscoring the referee's
discussion of Attorney Davison's disputing the facts of his criminal record,
minimizing the incident with his wife, and his explanation about why he pled
guilty to the three felonies in 1999.The OLR argues the record reveals a pattern of inconsistencies including
admitted perjury at a trial; receiving professional discipline for making a misrepresentation
to a client and now disputing the conduct described in the reprimand; failing
to list prior criminal convictions; under-describing serious multiple-felony
convictions; denying the acts shown in the record of the criminal case;
borderline mischaracterizing by omission the nature of his appeal of that case;
and presenting a confounding if not entirely incredible explanation for his
decision to enter into a negotiated plea bargain.

¶18The OLR argues that Attorney Davison's lack of candor, or his at
best questionable candor, supports an assessment that, overall, he failed to
prove he has the moral character required for reinstatement.The OLR also asserts that Attorney Davison
has failed to prove his resumption of the practice of law will not be
detrimental to the administration of justice or subversive of the public
interest.

¶19This court will affirm a referee's findings of fact unless they are
found to be clearly erroneous.Conclusions of law are reviewed de novo.SeeIn re Disciplinary Proceedings Against Jennings,
2009 WI 26, ¶22, 316 Wis.2d6, 762 N.W.2d648.

¶20Supreme court rule 22.29(4) provides that a petition for
reinstatement must show all of the following:

(a) The petitioner
desires to have the petitioner's license reinstated.

(b) The petitioner has
not practiced law during the period of suspension or revocation.

(c) The petitioner has
complied fully with the terms of the order of suspension or revocation and will
continue to comply with them until the petitioner's license is reinstated.

(d) The petitioner has
maintained competence and learning in the law by attendance at identified
educational activities.

(e) The petitioner's
conduct since the suspension or revocation has been exemplary and above
reproach.

(f) The petitioner has a
proper understanding of and attitude toward the standards that are imposed upon
members of the bar and will act in conformity with the standards.

(g) The petitioner can
safely be recommended to the legal profession, the courts and the public as a
person fit to be consulted by others and to represent them and otherwise act in
matters of trust and confidence and in general to aid in the administration of
justice as a member of the bar and as an officer of the courts.

(h) The petitioner has
fully complied with the requirements set forth in SCR 22.26.

(j) The petitioner's
proposed use of the license if reinstated.

(k) A full description of
all of the petitioner's business activities during the period of suspension or
revocation.

(4m) The petitioner has
made restitution to or settled all claims of persons injured or harmed by
petitioner's misconduct, including reimbursement to the Wisconsin lawyers' fund
for client protection for all payments made from that fund, or, if not, the
petitioner's explanation of the failure or inability to do so.

¶21Supreme court rule 22.31(1) provides that an attorney seeking
reinstatement of his or her license has the burden of demonstrating all of
these requirements by clear, satisfactory, and convincing evidence.We adopt the referee's findings and
conclusions and agree that Attorney Davison has failed to meet his burden of
demonstrating by clear, satisfactory, and convincing evidence that his
post-revocation conduct was exemplary or above reproach.In addition, we agree with the OLR that
Attorney Davison has also failed to demonstrate by clear, satisfactory, and
convincing evidence that he has the moral character to practice law in
Wisconsin and he has failed to prove that his resumption of the practice of law
will not be detrimental to the administration of justice or subversive of the
public interest.

¶22We do not reach this decision lightly.It has been 16 years since Attorney Davison
agreed to the voluntary revocation of his license to practice law.In his petition for reinstatement he
indicated that if his license were reinstated he intended to advocate for the
rights of blind persons and others who are disabled and also intended to appear
before legislative bodies concerning issues relating to disabled persons.While these are laudable goals, we are
troubled by the fact that throughout his lifetime Attorney Davison has been
given multiple opportunities to atone for his past behavior and time after time
he has failed to live up to the chances he has been given.We conclude that he has failed to satisfy the
burden placed on him by supreme court rule 22.29(4).

¶23Although the referee recommended, "based solely on
compassion," that no costs be assessed, we find no extraordinary
circumstances in this case that would warrant a deviation from our general
policy of imposing all costs of the proceeding on the respondent.

¶24IT IS ORDERED that Jimmie G. Davison's petition for reinstatement
of his license to practice law in Wisconsin
is denied.

¶25IT IS FURTHER ORDERED that within 60 days of the date of this
order, Jimmie G. Davison shall pay to the Office of Lawyer Regulation the costs
of this reinstatement proceeding.

[1]The Davison criminal
case was the subject of a 2003 decision from this court.In State v. Davison, 2003 WI 89, 263 Wis.2d145, 666 N.W.2d1, the court, with
Chief Justice Abrahamson and Justice Bradley dissenting, reversed a court of
appeals decision which, in turn, had reversed the judgment of the Kenosha
County circuit court following Attorney Davison's negotiated guilty plea.The court of appeals had concluded that the
aggravated battery and battery by a prisoner punishments were multiplicitous,
in violation of Attorney Davison's double jeopardy rights under the United States and Wisconsin constitutions.The majority of this court concluded that the
convictions for both aggravated battery and battery by a prisoner were in
conformity with legislative intent and did not violate Attorney Davison's due
process right against multiplicitous punishments.